Jammu & Kashmir High Court - Srinagar Bench
Vajida Bano And Ors vs State Through Advocate General on 17 March, 2020
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Advance List
Sr. No. 86
IN THE HIGH COURT OF JAMMU AND KASHMIR AT
SRINAGAR
CrlA (S) No. 05/2019
CrlM No. 853/2019
Through Video Conferencing
Vajida Bano and Ors.
... Petitioner(s)
Through: - Mr. P N. Raina, Sr. Advocate
with Mr. J. A. Hamal, Adv. and
Mr. Sonam Dorji, Adv.
V/s
State through Advocate General
....Respondents(s)
Through: - None
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
ORDER
17.03.2020 CrlM No. 853/2019 Applicants-convicts during the pendency of the Conviction Appeal, seek suspension of sentence and grant of bail in case FIR No. 09/2014, Police Station, Kargil, for commission of offences under Sections 364, 317, 302, 120-B and 201 Ranbir Penal Code on varied grounds with particular reference that the applicants 2 and 3 namely Sakeena Bano and Mst. Hajira Bano, have already undergone more than half of the sentence, therefore, are entitled to the benefit of Section 436-A of Criminal Procedure Code, 1973.
Applicants 2 and 3 are also claiming the benefit of Section 437 of Criminal Procedure Code while relying on the Judgment of Hon'ble Supreme Court in case titled Bhagwan Rama Shinde Gosai and Ors. Vs. State of Gujarat, reported in (1999) 4 Supreme Court Cases 421. It is stated that there being no statutory restriction and a chance of the appeal being taken up quite sooner, the claim of the applicants 2 and 3 be considered liberally on application of the above Judgment.
The Conviction Appeal No. 05/2019, filed against the Judgment of the conviction dated 23.09.2019 passed in case No. JKKR010000042015 and sentence dated 25.09.2019, by the Principal Sessions Judge, Kargil, for commission of offences under Section 364, 317, 302, 120-B and 201 RPC, was challenged on the grounds taken in the appeal with a prayer of seeking setting aside of the same.
The Court while issuing notice to the other side, had also issued notice in the CrlM No. 853/2019, seeking suspension of sentence and grant of bail on 16.10.2019. The matter was taken up on 29.11.2019, but there was no appearance on behalf of the respondents. Thereafter, on 10.12.2019, Mr. F. A. Natnoo, Sr. AAG appeared and sought time and was granted weeks' time to file reply/objections and the matter was directed to be listed on 20.12.2019, but was taken up on 24.12.2019, again nobody appeared on behalf of respondents. Thereafter, on 03.02.2020, Mr. F. A. Natoo, Sr. AAG appeared vice Mr. Amit Gupta, AAG and was given further time to file reply with direction to the Registry to list the matter on 07.02.2020. On 10.03.2020, the Registrar Judicial submitted a note to Hon'ble the Chief Justice, stating the reasons for not listing the matter on the appointed date, viz 07.02.2020 and Hon'ble the Chief Justice has assigned the matter to this Bench, to be taken up by use of Video Conference. It is how this matter has been listed and taken up for consideration.
Neither objections have been filed, nor anyone appeared on behalf of the respondents.
Heard learned counsel for the applicants-appellants, perused the records and considered the matter.
Perusal of the impugned Judgment reveals that the Police Station, Kargil, having registered FIR No. 09/2014 against five accused, including the applicants, under Sections 364, 317, 302, 120-B and 201 RPC, has finally on conclusion of the trial convicted the applicants-appellants under Sections 364 RPC read with Section 120-B RPC and Section 201 RPC and acquitted the applicants under Section 302 and 317 RPC. The trial Court while recording the conviction had on hearing the applicants sentenced them for the term of ten years rigorous imprisonment for the commission of offence under Sections 364& 120-B RPC. They are further sentenced for a term of five years of simple imprisonment and fine of Rs. 5000/- each. The trial Court has also given the benefit of exclusion of the period undergone while in custody under Section 397-A Cr. PC and further given the benefit of imprisonment to run concurrently.
Perusal of the impugned Judgment further reveals that the applicants were arrested on 29.03.2014 and 10.04.2014 respectively and have remained in custody during trial and thereafter as convicts. Applicant No. 1, Vajida Bano was arrested on 10.04.2014, but was granted bail on 08.05.2018 on merits.
The Court while considering the application for seeking suspension of sentence and grant of bail has examined the impugned Judgment, recording conviction as also order of sentence, besides the three fold submissions made by the Mr. P. N. Raina, Sr. Advocate, which are already detailed out in the foregoing paras.
Admittedly the applicants-appellants 2 and 3 have undergone more than half of the sentence and the conviction appeal is at the infancy. There is no likelihood of recording the decision in the Conviction Appeal in the near future, in other words the Conviction Appeal may take some time and the decision cannot be expedited, so the applicants 2 and 3 are entitled to the benefit of application of Section 436-A, Cr. PC, which provides the period for which under trial prisoner can be detained and offence, which did not involve the punishment of imprisonment for death and has been specified as one of the punishment under that law.
The applicants 2 and 3 have undergone the detention of period extended to one half of the maximum period of imprisonment specified for that offence under that law, therefore, are entitled for release on bail by the Court on the stringent conditions. Applicants 2 and 3 are also entitled for the benefit of application of the Judgment referred to and relied upon by Mr. P. N. Raina, learned counsel for the applicants, in case titled Bhagwan Rama Shinde Gosai and Ors. Vs. State of Gujarat, reported in (1999) 4 Supreme Court Cases 421, where the Hon'ble Supreme Court while considering the suspension of sentence pending appeal, had made observations and directions with the prayer of seeking suspension of sentence in the case of the convicts, where there is no chance of expediting the decision in the appeal, should be considered liberally unless there is any statutory restriction, which in other words means the restriction qua the offence which involved death penalties/life.
The submissions of Mr. P. N. Raina, Sr. Advocate that the Judgment of the Hon'ble Supreme Court squarely covers the case of the applicants as there is no punishment recorded in the offence, where there is no statutory restriction. The submission has substance, therefore, accepted. The consideration for grant of suspension of sentence and grant of bail, qua the application of Section 437 has also substance.
In the above background, the application is allowed and sentence recorded by the trial Court on 25.09.2019, in the case of applicants-convicts in case FIR No. 09/2014 for the commission of offences under Sections 364, 317, 302, 120-B and 201 Ranbir Penal Code is suspended and consequently the applicants namely Vajida Bano, Sakeena Bano and Mst. Hajira Bano are granted bail on the following conditions:-
i. That they shall not leave the territorial jurisdiction of this Court. ii. They shall remain present as and when the appeal is taken for consideration unless exempted on the recorded reasons. iii. They shall furnish surety bond in the sum of ₹ 50,000/- each to the satisfaction of Registrar Judicial of this Court and personal bonds in the same amount to the satisfaction of the Superintendent District Jail Leh, which shall be got attested before the Principal Sessions Judge, Leh.
iv. They shall surrender the passport, if any, before the Registrar Judicial of this Court.
CrlM No. 853/2019 is disposed of.
List main case on 24.04.2020.
Registry to send copy of this order to Principal Sessions Judge, Leh, who shall ensure the service of the same on the district Jail, Leh for release of applicants.
(Ali Mohammad Magrey) Judge Srinagar 17.03.2020 Mohammad Yasin Dar MOHAMMAD YASIN DAR 2020.03.17 19:05 I attest to the accuracy and integrity of this document